The following Local Government practice note Produced in partnership with Tim Spencer-Lane provides comprehensive and up to date legal information covering:
This Practice Note considers recent court decisions on whether a parent can consent to the confinement of their child which, absent valid consent, would amount to a deprivation of liberty.
Article 5 of the European Convention on Human Rights (ECHR) guarantees the right to personal liberty and provides that no one should be deprived of their liberty in an arbitrary fashion. The protection under Article 5 of the ECHR applies to those of all ages. Article 5(1)(e) of the ECHR permits the lawful detention of, among others, 'persons of unsound mind' in accordance with a procedure prescribed by law. Article 5 also requires certain safeguards to be provided to persons deprived of their liberty, including the right of access to speedy judicial proceedings to challenge the lawfulness of the detention.
The question of when a deprivation of liberty arises is therefore crucial. In the context of a person of 'unsound mind', the European Court of Human Rights has confirmed that a deprivation of liberty has three elements:
the objective element of confinement in a restricted space for a non-negligible period of time
the subjective element that the person has not validly consented to that confinement, and
the detention being imputable to the state
In most of the key cases, it is common ground that the second and third elements are satisfied. In other
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This Practice Note examines the doctrine of consideration and the key role it plays in English law in determining whether a contract is enforceable.A promise will only be capable of being contractually enforced if it is either made in a deed or made in exchange for something of value, known as
What is quia timet relief?Injunctions are generally awarded where a party has already suffered a wrong. For guidance on injunctions generally, see Practice Note: Injunctions—guiding principles. However, an injunction may be sought before a party's rights have been infringed on the basis that they
There are two kinds of burden:•the legal burden, and•the evidential burdenThe legal burdenA party has the legal (sometimes called ‘the persuasive’) burden where the onus is on that party to prove a fact or issue in a case to the required standard of proof.The legal burden is generally on the
This Precedent letter covers disclosure obligations under CPR 31. It does not apply to proceedings subject to the disclosure pilot scheme under CPR PD 51U. For guidance on the disclosure pilot scheme, see Practice Note: Business and Property Courts—the disclosure pilot scheme. For a client letter on
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